Tuesday, April 21, 2015

Eastman: "Just the Facts" - and then flows the BS

John Eastman is chairman (and lead counsel) of National Organization for Marriage. On Monday Eastman took to the blog of Witherspoon Institute with “Just the Facts, Ma’am: Rebutting the False ‘Inevitability’ Narrative.” After spending some time explaining why all of the polls are wrong – with the exception of one commissioned by Family Research Council – Eastman explains why Justice Ginsburg was wrong when she said that Americans are ready for gay marriage:

… the intensity of the fight over marriage is unparalleled in modern American politics. Over the past decade and a half, more than $215 million has been spent on ballot initiatives defending (or trying to overturn) the traditional, biologically rooted definition of marriage. No matter what Justice Ginsburg says, the more than fifty million voters who have spent an immense amount of time and treasure to protect the fundamental nature of the institution of marriage are not at all likely to “accept” a Supreme Court decision that takes the decision about marriage policy away from them.

Prior to 2004 the issue was an abstraction (the Massachusetts Supreme Court ruled in favor of marriage equality on February 4, 2004). The amount of money spent on marriage discrimination is irrelevant, if not nationally embarrassing. Equally irrelevant is the number of Americans who voted to confine marriage to opposite sex couples. I am sure that many people did not “accept” the Court's wisdom in Brown v. Board of Education yet public schools are generally desegregated today.

Most importantly, same-sex marriage does not affect anyone other than those thus wed. In my home state of Florida, about three months after the state started issuing marriage licenses to same-sex couples, the issue is all but forgotten. There are no demonstrations in the streets. Nobody cares. Since then the Republican dominated state senate has defeated two bills that would have legalized private adoption agencies to discriminate. Sure, the US Conference of Catholic Bishops and NOM (are those not the same thing?) will be displeased. Tony Perkins and his ilk will fire off hyperbolic statements. Yet, assuming a Friday opinion release, the rest of America will be ready to go back to work on the following Monday without giving the issue much further thought.

And then there was Schuette:

Last year, Justice Kennedy addressed this kind of judicial arrogance in a different context, rejecting an effort to take the issue of race-based preferences in college admissions away from the voters. “This case is about who may decide it,” he wrote in Schuette v. Coalition to Defend Affirmative Action. “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside [state] laws that commit this policy determination to the voters.” Even more significantly, he stated that “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Justice Kennedy already set the bar for same-sex marriage in United States v. Windsor. Writing for the majority Kennedy said that states regulate marriage providing that they do not interfere with the constitutional rights of citizens. If same-sex marriage bans violate the 14th Amendment then they are going to be history. The issue of states' rights is settled.

And what would a polemic about same-sex marriage be without some sophistry about Roe v. Wade?

The author of Roe v. Wade “did more inadvertent damage to our democracy than any other 20th-century American,” wrote David Brooks in the New York Times in 2005. “When he and his Supreme Court colleagues issued the Roe v. Wade
decision, they set off a cycle of political viciousness and
counter-viciousness that has poisoned public life ever since.” Instead
of being known as the great uniters—as no doubt they hoped their legacy
would be—these justices have gone down in history as the great dividers,
overshadowing what otherwise might have been exemplary careers on the
Court.

In brief, this isn't Roe. Everyone lives. What are these nitwits proposing to do? Protest same-sex marriages? Will sidewalk counselors scream at people that they are going to Hell? How does that prospect influence the Supreme Court?

Add a half-cup of gibberish to the mix:

The petitioners’ demand that the Court “find” a right to same-sex
“marriage” implicit in the text of the Fourteenth Amendment threatens to
drag the Supreme Court, and the country, into another such quagmire. If
the Constitution clearly compelled such a result, then it would be the
“painful duty” of the Court to say so, a position recognized by the
Court nearly two centuries ago in the landmark case of McCulloch v. Maryland.
But the Constitution’s text does not remotely compel such a result.
Without such a clear command, accepting the petitioners’ arguments would
more accurately be described as a “self-inflicted wound” than the
exercise of a “painful duty.”

By that logic, we could simply dispense with the Court. John Eastman can hereafter determine (without briefing) what issues compel a legal adjustments in order to conform to the Constitution. I someone paying Eastman by the word?

Have some procreation while we're at it:

Marriage is and always has been about much more than the
self-fulfillment of adult relationships. Because the institution of
marriage is the principal manner in which society structures the
critically important function of procreation as well as the rearing of children, it has long been rec­ognized as “one of the cornerstones of our civilized society,” “fundamental to our very existence and survival.” Same-sex and opposite-sex couples are simply not similarly situated with respect to at least that fundamental purpose.

That second cite, by the way, is to Loving v. Virginia. That took balls. Of course neither cite refers to a definition of marriage as “n. 1. The process by which adults unite in a religious ceremony for the purpose of cranking out children.” It's a definition of convenience that seems to have popped up to (incompetently) oppose marriage equality.

Be afraid. Be very afraid:

Such a radical change in the very meaning of a core social
institution is likely to have profound, and perhaps unforeseen, effects.
Redefining marriage to encompass same-sex relationships “will introduce
an implicit revolt against the institution into its very heart.”
Indeed, same-sex marriage is “the most recent development in the
deinstitutionalization of marriage,” the “weakening of the social norms
that define people’s behavior in . . . marriage.” It would be folly of
the highest order for the voters themselves to adopt such a radical
experiment, but at least they would be free to correct course once the
consequences of their folly became clear. A judicial dictate, reading
into the Constitution a command for same-sex marriage that is clearly
not there, would add illegitimacy to folly, and it would be much more
difficult to unravel.

Take a breath Mr. Eastman. That change only prospectively affects about 2% of all marriages and Massachusetts still has the lowest, or one of the lowest, divorce rates in the nation (depending upon the data source). Chances are pretty good that Eastman won't notice the difference. He certainly cannot point to Massachusetts and cite by example those “profound, and perhaps unforeseen, effects.”

Finally (at long last):

The more than fifty million people who, by their votes, have
demonstrated that they continue to understand the profound importance of
the institution of marriage deserve better. They deserve not
to have their participation in the democratic process “demeaned,” as
Justice Kennedy himself described it, by a Court decision that
“presume[s] that the voters are not capable of deciding an issue of this
sensitivity on decent and rational grounds.”

No that it is relevant but that fifty million people only represents a bit more than 20% of the electorate. In some cases voters have since reversed themselves.